Subject_1 ASSIGNATION. Subject_2 Formalities of an Instrument of Intimation.
Scot v. L Drumlanrig.
Date: 3 July 1628 Case No. No 45.
In a competition betwixt an arrester and an assignee, the assignee's intimation was found null, because the same person who was procurator also acted as notary.
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In a double poinding, Scot contra L. Drumlanrig, wherein the two parties contending for the preference of a sum, acclaimed by both the parties, from a debtor of their common debtors: The L. Drumlanrig seeking the same as arrested, for satisfaction of some debt owing to him by their common debtor, and the other seeking the same as assignee made thereto; which assignation was both made and intimate before the L. Drumlanrig's arrestment: Likeas both the parties had obtained sentences upon both their rights foresaid, against the complainer:—The Lords preferred Drumlanrig, notwithstanding of the other parties prior assignation and intimation, because the intimation was found null, seeing it was made by a procurator for the assignee; which procurator was notary to the same intimationr made by himself as procurator; and the Lords found, he could not be both procurator and notary; but that it ought to have been perfected by two distinct persons; and that one and the same person could not be both procurator to intimate in the assignee's name, and also notary to take instruments on the doing thereof; and the assignation unintimate, albeit prior to the arrestment, was not a cause of preference to the said subsequent arrestment, where the question was with a third party, and not betwixt the cedent and the debtor to the cedent only; but that a third person claimed the same, who contended, that the assignation, unintimate, could not derogate to his subsequent arrestment and lawful diligence, done before any lawful deed made by the assignee, to affect the sum libelled: And so it was also found, and the Lords sustained the decreet obtained by Drumlanrig, against the said person who was decerned to make the arrested money, owing to the said common debtor, furthcoming, albeit it was quarrelled as null, being given before the term of payment of that money which was arrested, which was not come the time of the said sentence. Which allegeance was repelled, and the decreet sustained, which was only declaratoria juris; for therein all execution was suspended while the terms of payment were past and come. (See Legal Diligence.)
Act. Nicolson,Alt. ——.Clerk Scot.
Fol. Dic. v. 1. p. 63. Durie, p. 381.
